This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals
                              C4-95-2550

     Scott Michael Rivers, petitioner,
     Appellant,


vs.

Commissioner of Public Safety,
     Respondent.


Filed June 25, 1996
Affirmed
Huspeni, Judge

Ramsey County District Court

File No. C1958446

Ronald S. Latz, Latz & Latz, P.L.L.P., One Financial Plaza, Suite 2500, 120
S. Sixth St., Minneapolis, MN 55402 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Joel A. Watne, Asst. Attorney
General, 500 Capitol Office Bldg., 525 Park St., St. Paul, MN 55103 (for
Respondent)

Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and
Holtan, Judge.(*)

        [Footnote] (*)Retired judge of the district court,
        serving as judge of the Minnesota Court of Appeals
        by appointment pursuant to Minn. Const. art. VI,
        § 10.
                                     
                        Unpublished Opinion

HUSPENI, Judge (Hon. Allen R. Markert, District Court Trial Judge)

Appellant, in challenging the district court decision sustaining the
revocation of his driving privileges, argues that there was a deficiency in
the officer's observation of him prior to his Intoxilyzer test and that
respondent Commissioner of Public Safety had not made a prima facie case
that the test was validly administered and yielded valid results. Because
we see no deficiency in the officer's observation of appellant and conclude
that his test was validly administered and yielded valid results, we
affirm.

                                     
                               Facts

Appellant Scott Michael Rivers was arrested by Minnesota State Trooper John
Korth for driving under the influence of alcohol in violation of Minn.
Stat. § 169.121, subd. 1 (1994). After Korth read appellant the implied
consent advisory form, appellant agreed to submit to a breath test. Korth,
a certified Intoxilyzer operator, observed appellant for 15 to 20 minutes
prior to administering the test. During the observation period, appellant
sat on the bench provided for that purpose and did not eat, drink, or place
anything in his mouth. Korth's handwritten notes on the Intoxilyzer test
record reflect that he checked appellant's mouth and found nothing and that
appellant was cooperative during the test and ``blew hard both times.''

The other part of the test record, a computer printout, says ``diagnostic
OK'' and shows that the four air blank tests all revealed a concentration
of .000. The printout also reflects that appellant provided a sample at
3:09 that had a concentration of .103 with a replicate test of .105; that a
calibration standard test then revealed a concentration of .106 with a
replication of .107; that appellant's second sample provided at 3:14 had a
concentration of .105 with a replicate test of .108; that the breath
correlation was 99 percent; and finally that the reported value of
appellant's alcohol concentration was .10. Appellant's driving privileges
were revoked on the basis of the test; he challenged the revocation.

The test record was admitted during the hearing. Asked on direct
examination if he could identify it, Korth answered, ``Yes, that would be a
copy of a test from the intoxilyzer.'' He referred to the exhibit while
answering questions, prompting appellant's counsel to remark, ``Your Honor
the witness is reading from the record again.'' The court asked, ``Do you
have an objection to it, Counsel?'' and appellant's counsel answered,
``Yes. * * * [H]e's not testifying independently from his memory as to the
results.'' The court then asked ``Do you have an objection to the
Exhibit?'' and appellant's counsel answered ``No, not to the foundation for
the exhibit itself. We don't challenge the validity of the test
results.''(1)
        [Footnote] (1)Respondent's counsel claims this is
        either a misstatement by appellant's counsel or an
        inaccuracy in the transcript, and says there are
        other omissions in the transcript. Appellant's
        counsel, however, ordered the partial transcript of
        the hearing and does not challenge either its
        accuracy or the omission of portions that would be
        beneficial to his case.

Korth went on to testify about the information on the test record and said
that appellant had seen and had not disputed the results of the test. Under
cross-examination, Korth also testified that he could not recall what the

acceptable standards for calibration and air blank tests were. The court
sustained the revocation of appellant's license.
                                     
                              Decision

Standard of Review
``Conclusions of law will be overturned only upon a determination that
the trial court has erroneously construed and applied the law to the facts
of the case.'' Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272,
273 (Minn. App. 1986).

Appellant argues that the court misapplied the law in determining that the
revocation should be upheld because Korth's testimony showed deficiencies
in his observation of appellant prior to the test and failed to establish a
prima facie case that the test was properly administered.
1. The Observation Period
Appellant cites McGregor v. Commissioner of Public Safety, 386
N.W.2d 339 (Minn. App. 1986), to argue that defects in Korth's observation
of appellant defeat the prima facie validity of the Intoxilyzer test. In
McGregor, the driver was tested by one officer but observed prior to
the test by another officer, who
        
        had no training, did not know why the driver was to
        be observed, or what to observe. * * * [T]he officer
        had no understanding of the purpose of the
        [observation] procedure, thus making it impossible
        to ensure the reliability of the test.

Id. at 340-41. McGregor is readily distinguished from the
case before us. Korth's testimony showed that he had been trained in
Intoxilyzer procedure, had observed appellant to be sure appellant did not
put anything in his mouth, had checked appellant's mouth and found no
foreign substance,and had observed appellant for 15 to 20 minutes. Korth's
testimony also showed that he knew the observation period is conducted to
make sure drivers do not put anything into their mouths, do not fall
asleep, and do not do ``anything out of the ordinary.'' Korth was far from
the untrained observer of McGregor. There is no evidence that
appellant's Intoxilyzer test was invalid because of deficiencies in the
observation period.

2. The Prima Facie Case
Respondent has the burden of proving a prima facie case of proper
administration of an Intoxilyzer test. See State v. Dille,
258 N.W.2d 565, 567 (Minn. 1977). However, ``[o]nce prima facie reliability
of test administration is established, it is incumbent upon [the party
opposing the test] to suggest reasons why the test was untrustworthy.''
McGregor, 386 N.W.2d at 340 (citing Dille, 258 N.W.2d at
568). Appellant has suggested no reasons why the test was untrustworthy;
his counsel testified ``We don't challenge the validity of the test
results.'' Appellant argues, however, that respondent did not meet its
burden of making a prima facie showing that the test was properly
administered.

Appellant attempts to distinguish Loxtercamp v. Commissioner of Pub.
Safety, 383 N.W.2d 335 (Minn. App. 1986), review denied (Minn.
May 22, 1986); Fritzke v. Commissioner of Pub. Safety, 373 N.W.2d
649 (Minn. App. 1985); and Bielejeski v. Commissioner of Pub.
Safety, 351 N.W.2d 664 (Minn. App. 1984), all of which held that a
prima facie case of proper test administration is established by testimony
that the air blank test and the control test produced the expected results.
Because Korth on cross-examination could not recall the limits for
acceptable results of the air blank test and what the calibration standard
test meant, appellant claims that Korth's testimony failed to establish a
prima facie case. We disagree and conclude that a prima facie case was
established.


Korth testified that there were four air blank tests, that there are
supposed to be four, and that ``the air blanks read zero.'' ``A reading of
room air [air blank] is taken which should give a reading of zero.''
Bielejeski, 351 N.W.2d at 666. Therefore the air blank test result
was correct, and one element of the prima facie case of proper test
administration was met. Korth's inability to recall the range of acceptable
results for an air blank test on cross-examination is simply irrelevant.

Similarly, Korth testified that he ran a calibration standard test, that
the result was .106 with a replicate of .107, and that those readings were
within accepted standards for the calibration test. ``If ** * the
[calibration test] results are within .10 to .12, the [Intoxilyzer] machine
has been shown to be functioning properly.'' Kadrlik v. Commissioner of
Pub. Safety, 388 N.W.2d 8, 9 (Minn. App. 1986). This test result
established another element of the prima facie case for proper
administration of the test, and Korth's inability to recall the range of
acceptable results is again irrelevant.

The district court did not erroneously apply the law when it held that
respondent had established a prima facie case that appellant's Intoxilyzer
test was properly administered and that there was no deficiency in the
observation of appellant. The revocation of appellant's license was
properly sustained.
Affirmed.